FAMILY VIOLENCE AND THE FAMILY LAW ACT

The Family Law Amendment (Family Violence and other Measures Act) 2011(Cth) (the FV amendments) which amended the Family Law Act 1975 (Cth) (‘the FLA’) came into operation on the 7 June 2012.  This legislation was largely a result of continued concerns that while family violence is a fairly common occurrence on separation, the FLA does not deal well with family violence.

The FV amendments were a result of three key reports that looked at how the family law system deals with family violence. These reports were:

Evaluation of the 2006 family law reforms –  Australian Institute of Family Studies (AIFS);

Family Courts Violence Review –  Honourable Professor Richard Chisholm AM;

Improving responses to family violence in the family law system: An advice on the intersection of family violence and family law issues  – Family Law Council.

The reports identified a significant failure of the FLA to adequately protect children and other family members from family violence, particularly arising from parenting disputes. Specifically the FLA did not contain any provisions that prioritised protecting children harm over parents pursuing their goal of “shared parenting”.  There was concern that the FLA had moved away from protecting women and children to acceding to men’s demand for increased time with their children.

The main changes that were introduced into the FLA by the FV amendments were:

a) Section 4AB – a new much broader definitions of family violence, exposure to family violence and child abuse – this new definition of family violence is “violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful”.

b) The FV amendments to the FLA identifies examples of this behaviour including (but not limited to) the following:

• an assault; or

• a sexual assault or other sexually abusive behaviour; or

• stalking; or

• repeated derogatory taunts; or

• intentionally damaging or destroying property; or

• intentionally causing death or injury to an animal; or

• unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or

• unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or

• preventing the family member from making or keeping connections with his or her family, friends or culture; or

• unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.

c)  The FV amendments state that a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence including:

• overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or

• seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or

• comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or

• cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or

• being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.

When determining the best interests of the child the court is now directed to take into account “primary” and “additional” considerations.  The two primary considerations are:

• the benefit to a child of having a meaningful relationship with each of the child’s parents; and
• the need to protect the child from harm. The FV amendments have added an additional requirement that the court to give “greater weight” to the need to protect the child from harm.

The Family Violence amendments to the Family Law Act have assisted court officers to assess risk, make decisions about future parenting arrangements that are safer for children and improve the family courts’ ability to identify and respond to cases of violence.

If you would like further information in relation to this matter or other legal matters please contact our office on Freecall 1800 609 945 or email us now.

*The information provided in this website serves as a general guide and does not constitute legal advice. It is based on our research and experience at the time of publication. Please consult our knowledgeable legal team for any specific inquiries or advice relevant to your circumstances, as the content may not have been updated subsequently.  

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